IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: 2025-122173
Not Reportable
In the matter between:
ZIMMER BIOMET SOUTH AFRICA (PTY) LTD Applicant
and
LARRY OOSTHUYZEN First Respondent
STRYKER SOUTH AFRICA (PTY) LTD Second Respondent
Heard: 11 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 12h00 on 19 September 2025
JUDGMENT
ALLEN-YAMAN J
2
Introduction
[1] On 24 July 2025 the applicant applied to court seeking to enforce a restraint of
trade and confidentiality agreement against the first respondent, its erstwhile
employee, the first respondent having taken up employment with the second
respondent, its competitor. In so doing, the applicant sought to protect both
customer connections and confidential information.
[2] The application was opposed by both the first and second respondents who
challenged the issue of urgency as well as the merits, although the first
respondent did make certain concessions regarding the issue of his
relationships with a limited number of the applicant’s customers.
Background
[3] The applicant’s business entails the supply of specialised medical equipment
and products, including implants, surgical tools, replacement systems, and
smart robotics. The first respondent was employed by the applicant with effect
from 1 April 2018 in his capacity as a Clinical Support Technician. During 2021
he was promoted to the position of a Sales Representative but was demoted
back to the original position to which he had been appointed with effect from 1
April 2025.
[4] It was common cause between the parties that the first respondent’s
employment by the applicant was governed by a written contract of
employment, and that such contract included a written covenant of restraint of
trade, and an undertaking as to confidentiality.
[5] In accordance with the restraint of trade, the first respondent agreed as follows,
‘7.1 The employee shall not while he is employed by the company and for 6 (six)
months from the termination date, whether as proprietor, partner, director,
shareholder, employee, consultant, contractor, financier, agent,
representative, assistant or otherwise, directly or indirectly, carry on or be
interested or engaged in or concerned with or employed by any business,
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trade, firm, undertaking or concern carried on in the territory which sells
prescribed goods or renders prescribed services, or in the course of the
business of which prescribed goods are sold or prescribed services are
rendered, provided that he shall not be deemed to have breached this
undertaking by reason of him:
7.1.1 holding shares in the company; or
7.1.2 holding shares in any company, the shares of which are listed on a
recognised stock exchange if the shares owned by:
…
7.2 The employee undertakes that neither he nor any business, trade, firm,
undertaking or concern in or by which he is directly or indirectly interested or
employed will within 6 (six) months after the termination date, directly or
indirectly:
7.2.1 encourage or entice or incite or persuade or induce any employee of the
company to terminate their employment by the company; or
7.2.2 furnish any information or advice to any employee then employed by the
company or to any prospective employer of such employee or use any other
means which are directly or indirectly designed, or in the ordinary course of
events calculated, to result in any such employee terminating their
employment by the company and/or becoming employed by or directly or
indirectly in any way interested in or associated with any other business,
trade, firm, undertaking or concern; or
7.2.3 furnish any information or advice (whether oral or written) to any prescribed
client/customer that he intends to or will (whether as proprietor, partner,
director, shareholder, employee, consultant, contractor, financier, agent,
representative or otherwise) directly or indirectly, be interested in or engaged
in or concerned with or employed by any business, trade, firm, undertaking or
concern carried on in the territory which sells prescribed goods or renders
prescribed services or in the course of the business of which prescribed
goods are sold or prescribed services are rendered after the expiry of 6 (six)
months after the termination date;
months after the termination date;
7.3 Without derogating from the obligations imposed by this clause 7 the
employee undertakes that neither he nor any business, trade, firm,
undertaking or concern in or by which he is directly or indirectly interested,
engaged, concerned or employed will for a period of 6 (six) months after the
termination date directly or indirectly, whether as proprietor, partner, director,
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shareholder, employee, consultant, contractor, financier, agent,
representative, assistant or otherwise in any part of the territory:
7.3.1 solicit orders from prescribed clients/customers for the prescribed goods
and/or the prescribed services;
7.3.2 canvass business in respect of the prescribed goods and/or the prescribed
services from prescribed clients/customers;
7.3.3 sell or otherwise supply any prescribed goods to any prescribed
client/customer;
7.3.4 render any prescribed services to any prescribed client/customer.
7.4 Each of the undertakings set out in this clause 7 (including those appearing in
a single clause) is severable inter alia as to:
7.4.1 nature of interest, act or activity;
7.4.2 categories of persons falling within the definition of prescribed
client/customers;
7.4.3 the categories of goods falling within the definition of the prescribed goods;
7.4.4 the categories of services falling within the definition of the prescribed
services; and
7.4.5 the individual magisterial districts and areas in the territory;
7.4.6 and are acknowledged to be reasonably required for the protection of the
company and are fair and reasonable.
7.5 For the avoidance of doubt the provisions of clause 7 and clause 8 shall
survive the termination of this agreement.’
[6] The issue of confidentiality was dealt with under the clause dealing with n on-
disclosure of information and return of documentation which respectively
provided,
‘8.1 The employee acknowledges that the company has been or will be
extensively involved in the orthopaedic and medical devices industry, and has
therefore acquired certain secret and confidential information relating to
same, which knowledge and secret and confidential information may, in the
nature of the employee’s employment with the company, be made available
to him.
8.2 The employee shall not, during the employment period, or thereafter, use for
his own benefit, or for the benefit of any other person or divulge or
his own benefit, or for the benefit of any other person or divulge or
communicate to any person, except to those of the directors and employees
of the company, whose province it is to know the same, any of the company’s
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secrets and confidential information which he may receive or obtain in relation
to the company’s affairs and/or prescribed clients/customers, prescribed
goods and/or prescribed services or to any design, artistic work, process or
invention or to any marketing or business technique which is carried on or
used by the company.
8.3 The employee undertakes to refer all queries, requests for information, details
sought, and any other information elicited, by any member of the press or
media to the managing director or chairman of the company, and undertakes
that no information of whatsoever nature pertaining to the affairs of the
company shall be furnished by the employee to the press or media. The
employee undertakes that any enquiries made or information sought by any
member of the South African Police Services shall be referred to the
managing director or chairman of the company, and undertakes further not to
furnish any information of whatsoever nature pertaining to the affairs of the
company to any member of the South African Police Services unless legally
obliged to do so.’
‘Upon termination of the employee’s employment with the company for any reason
whatsoever, the employee undertakes to:
10.1 promptly return to the company all programmes, documents and the like
which may have been made available by the company to the employee at any
time during the employment period;
10.2 surrender to the company all note books, records and copies thereof
(including electronic copies of documents and resources), together with any
other information that my be required by the company in connection
therewith; and
10.3 continue to observe the obligation of secrecy and confidentiality imposed in
relation to this agreement.’
[7] On 2 April 2025 the first respondent notified the applicant of his intention to
resign from its employ , then commenc ing to work out his three month notice
period, with his final working day being 30 June 2025. Within a week of the first
period, with his final working day being 30 June 2025. Within a week of the first
respondent having tendered his resignation the applicant became aware of his
intention to take up employment with the second respondent which led it to
addressing correspondence to him in which he was reminded of his obligations
in terms of the restraint of trade agreement and confidentiality undertakings and
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was requested to sign an undertaking in respect of such obligations by not later
than 11 April 2025. In response the first respondent declined to provide the
undertaking requested, and expressed his reservations concerning the
enforceability of the restraint throughout KwaZulu- Natal, in consideration of the
geographical area in which the applicant operated within the province. He
proposed, instead, that the parties meet to discuss the implications of the
restraint.
[8] The first respondent received no response to his correspondence. Two months
later, on 3 June 2025 the applicant again reiterated its request to him to provide
an undertaking that he would comply with his restraint of trade obligations.
Pursuant to certain discussions between the first respondent and the
applicant’s National Sales Manager, Mr Warren Lottering, the first respondent
addressed further correspondence to the applicant on 10 June 2025 in which
he reiterated his belief that the enforcement of the restraint of trade throughout
the province of KwaZulu-Natal was unreasonable, having explained,
‘The existing restraint clause refers to a ‘fair’ geographical limitation. Applying a
blanket restriction across the entire KZN province is neither proportionate nor relevant,
especially considering the reality of ZimmerBiomet’s current market presence. There
are multiple hospitals and regions within KZN where ZimmerBiomet has not operated
for a significant period of time and where the company has voluntarily ceased
operations. Imposing restrictions in areas where Zimmer has no ongoing business
interest or presence appears unjustifiable. Furthermore, the position I have accepted
at Stryker is not a sales representative role. My responsibilities will not involve direct
sales to surgeons, which significantly reduces the potential for competitive conflict.
This further supports the argument that the restraint should be more narrowly defined
and relaxed accordingly.’
and relaxed accordingly.’
[9] In the response subsequently given to him by Mr Lottering, he was informed
that a formal response would be given to him in due course, pursuant to the
applicant having consulted with its legal advisors. By 30 June 2025 such
further response was not forthcoming, and the first respondent’s employment
by the applicant came to an end.
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[10] On 8 July 2025, by which time the first respondent had taken up employment
with the second respondent, the applicant’s attorneys of record addressed a
letter to both, in which the following demands were made,
‘(a) You immediately cease and desist with your appointment / employment with
Stryker for the remaining period of the restraint of trade, within the Republic of
South Africa.
(b) You immediately abide by your restraint of trade obligations owed to our client
for the remainder of the applicable six (6) month period; and
(c) Stryker ceases and desists from employing you in contravention of your
restraint of trade obligations for the remainder of the applicable six month
period.’
The respondents were given until 11 July 2025 to comply with such demands.
[11] In response, the first respondent restated the concerns he had previously
expressed relating to the enforcement of the restraint to the extent required by
the applicant. Contemporaneously, the second respondent addressed
correspondence to the applicant’s attorneys in which it indicated that it would
be amenable to restricting the first respondent’s scope of work and thereby
ensure that he would have no dealings with the Healthcare Practitioners and /
or organizations with whom he had dealt whilst employed with the applicant for
a period of six months.
[12] The applicant was not prepared to accept the second respondent’s proposal
and duly initiated the present application on 25 July 2025.
Urgency
[13] In consideration of the time taken by the applicant to have initiated its
application, the respondents took issue with its claim to urgency. The
respondents’ contentions are not without merit.
[14] The applicant had become aware of the first respondent’s intention to take up
employment with a competitor by 8 April 2025, on which date it notified him of
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its intention to approach this court in the event that the undertakings it then
sought were not forthcoming. Despite the first respondent having expressly
refused to provide the undertakings sought, the applicant did not do so. It
allowed a period of two months to elapse until it sent further correspondence to
him, again advising him of its intention to approach this court in the event that
he did not agree to abide the terms of the restraint of trade agreement. T his
letter likewise failed to elicit a positive response from the first respondent, who
reiterated his belief that in the circumstances, the enforcement of the restraint
as required by the applicant would be unreasonable. Again, the applicant did
not then approach this court. Throughout the first respondent’s entire three
month notice period the applicant was well aware of the first respondent’s
intention to take up employment with the second respondent, and yet it failed to
take the steps it had threatened to take since the outset.
[15] A week after the termination of the first respondent’s employment the applicant
caused a further letter of demand to be addressed to the respondents and,
having received no positive response by 11 July 2025 (being the date on which
the demand was to have been complied with) the applicant took a further two
weeks to initiate the present application.
[16] Mr Swiggers for the applicant argued that it would have been inappropriate for
the applicant to have approached this court at any time prior to the first
respondent actually having breached the restraint agreement. Whilst notionally
there may be situations in which an actual breach of a contract is required, our
law recognises the appropriateness of interdictory relief in circumstances of
anticipatory breach giving rise to a reasonable apprehension of irreparable
harm. Given that the first respondent persistently refused to comply with the
applicant’s demands that he undertake not to breach the restraint, there is no
applicant’s demands that he undertake not to breach the restraint, there is no
reason to conclude that the applicant would have been entitled to have
approached this court, as it indicated it intended to do, prior to the conclusion of
the first respondent’s notice period.
[17] It cannot be said the that the applicant set about enforcing its rights at the
earliest available opportunity it had to do so. The fact that the applicant
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delayed in the initiation of its application, however, does not alter the other
conclusions relevant to the issue of urgency which arise in relation to the facts
of this matter. The first is that it is self- evident that without the urgent
intervention of this court, the applicant would be unable to obtain substantial
redress in due course in light of the fact that the period of the restraint is six
months. Secondly, the applicant’s delay in the initiation of its application did in
and of itself not create a situation of self -created urgency. Irrespective of the
time take by the applicant to have initiated its application, for it to be heard prior
to the effluxion of the restraint, the determination of the application in the
ordinary course could never have served the purpose sought to be served by
its initiation.
[18] In view of the aforementioned considerations, and the fact that a full set of
affidavits were exchanged with the issues having been fully ventilated, both
parties’ representatives having delivered comprehensive heads of argument,
this court will exercise its discretion in favour of dealing with the application as
one of urgency.
Analysis
[19] The existence of the restraint is not in dispute. That the first respondent has
taken up employment with a competitor of the applicant is also not in dispute.
The question of the enforceability of the restraint accordingly rests upon the
reasonableness of doing so.
[20] In this regard, the applicant seeks to enforce the restraint (contractually agreed
to have become operative throughout the whole of South Africa) within the
province of KwaZulu- Natal. Insofar as confidentiality is concerned, where the
applicant sought in its Notice of Motion the return of a plethora of what was
claimed to have been confidential information in the first respondent’s
possession together with an interdict preventing him from utilising such
information, in argument Mr Swiggers curtailed the applicant’s confidentiality
information, in argument Mr Swiggers curtailed the applicant’s confidentiality
claim to its customer lists and financial information.
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[21] As regards the restraint, it is the case of the respondents that, beyond the
relationships that the first respondent developed with a limited number of
Health Care Practitioners whilst in the employ of the applicant, the applicant
has no interest worthy of protection through the mechanism of a restraint. The
first respondent also denies that he is in possession of any information which
the applicant can legitimately claim to be confidential to it.
[22] The reasonableness of enforcement of a restraint is determined by reference to
the four questions posed in Basson v Chilwan & Others 1993 (3) SA 742 (A),
1
together with the further question posited in Reddy v Siemens
Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA),2
• Is there an interest of the one party (the applicant) which is deserving of
protection at the termination of the agreement?
• Is such interest being prejudiced by the other party?
• If so, does such interest weigh up qualitatively and quantitatively against the
interest of the other party that such other party should not be economically
inactive and unproductive?
• Is there another facet of public policy, having nothing to do with the
relationship between the parties, but which requires that the restraint should
either be maintained or rejected?
• If the applicant does have an interest worthy of protection, does the restraint
go further than necessary to protect that interest?
[23] As indicated above, the applicant asserted proprietary interest s in both its
customer connections and its confidential information.
(i) Customer connections
[24] Insofar as the protection of its customer connections is concerned, the
applicant alleged that its clients were both hospitals and surgeons. In his
capacity as a theatre technician, it was alleged that the first respondent spent
the majority of his time whilst at work with these surgeons, thereby having
1 At paragraphs 767C-H
2 At paragraph 17
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acquired in depth knowledge of its clients’ needs. As a theatre technician he
would assist and advise clients, and would be responsible to co- ordinate the
supply of products for particular procedures. Ancillary to this the first
respondent was responsible for training clients and their staff on the various
medical products supplied by the applicant, thereby having become aware of
such products’ specifications, pricing and usage protocols. In light of his
involvement with the applicant’s clients, the first respondent was able to
develop relationships with them and, in his employment with the second
respondent, will be able to leverage those relationships to its benefit.
[25] The first respondent disputed neither the nature of his employment functions
with the applicant, nor the nature of the relationships he formed with clients of
the applicant in the course of his employment by it. He contended, however,
that such relationships did not extend beyond the limited number of surgeons
with whom he had been assigned by the applicant to work, being approximately
12 in number. He asserted that, whatever connection he may have developed
with those surgeons, such connection did not trans late to other doctors with
whom he had no involvement.
[26] Albeit that the applicant sought to address this issue in reply with reference to
the confidentiality of its client base, known to the first respondent, such
response did not expressly address the first respondent’s objection to the
applicant having sought to protect customer connections which did not exist
insofar as the doctors with whom he had no involvement were concerned. T he
applicant merely asserted that the first respondent’s relationship with its
customers extended to the hospitals themselves . This was not , however, the
basis upon which the protection of its customer connections was sought to
have been established at the outset, and its assertions made in reply were, in
any event, wholly unsubstantiated.
any event, wholly unsubstantiated.
[27] Accordingly, on the facts before this court it must accept that the first
respondent’s relationships with the applicant’s clients, and hence its potentially
protectable customer connections, w ere limited to those surgeons with whom
the applicant worked closely.
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[28] For such customer connections to warrant the protection of the restraint, the
relationships between the first respondent and the surgeons must meet the
threshold established in Rawlins v Caravan Truck (Pty) Ltd 1993 (1) SA 537
(A),
‘… it was said that the need of an employer to protect its trade connections arises
where the employee has access to customers and is in a position to build up a
particular relationship with the customers and could easily induce the customers to
follow him or her to a new business. Once that conclusion has been reached and it is
demonstrated that the prospective new employer is a competitor of the applicant, the
risk of harm to the applicant if its former employee would take up employment
becomes apparent.’
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[29] The issue is then whether the applicant established that the admitted
relationships were such that, on the strength thereof, the surgeons with whom
the first respondent had interacted could be induced by him to move their
businesses to the second respondent , given that the mere existence of a close
relationship with customers is insufficient to warrant the enforcement of a
restraint.
[30] The applicant did not gainsay the first respondent’s assertion that no doctor
uses one or other of the products supplied by the applicant and / or the second
respondent exclusively. Absent dispute, there is no reason for this court not to
accept the correctness of such proposition. It is also reasonable to presume
that surgeons, responsible for the well -being of the patients under their care,
with professional reputations to uphold, and who are bound by codes of
professional conduct, would premise their choice of products on the efficacy
and reliability of the product s, rather than any personal affinity they may have
for a particular individual.
[31] Absent any evidence that the first respondent has the ability to cause the
departure of the surgeons with whom he worked from the applicant ’s business
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to that of the second respondent, this court cannot find that the enforcement of
the restraint would reasonably serve to protect the applicant’s interest in its
customer connections.
(ii) Confidential information
[32] For information to be classified as confidential it must be:
• capable of application in trade or industry, that is, it must be useful and not
be public knowledge or property;
• known only to a restricted number of people or a closed circle; and
• of economic value to the person seeking to protect it.4
[33] The applicant asserted,
‘The First Respondent in his position as a theatre technician had access to the
Applicant’s confidential information which included client lists, supplier lists, pricing
information, trade secrets , trade connections and other confidential information that
would place a competitor in a position to unfairly compete with the Applicant should the
competitor have access to such confidential information.’
[34] Except to have listed the aforementioned categories of information which the
first respondent was said to possess, the applicant provided this court with no
details relating to the information itself, let alone did it provide this court with an
explanation concerning its usefulness, its restricted access, or its economic
worth so as to enable this court to assess whether the threshold at which the
information sought to be protected could be categorised as confidential.
[35] The first respondent, on the other hand, denied that he had been privy to the
applicant’s confidential information whilst in its employ. In amplification of his
general denial, he disputed that he had been provided with any strategies
relating to sales by the applicant, and nor that had he received any formal
3 At paragraphs 541C-D
4 Townsend Productions (Pty) Ltd v Leech and Others 2001 (4) SA 33 (C) at paragraphs 53J-54B
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training to this end. On the contrary, he alleged that he was required to
develop his own strategies. He asserted that the applicant’s information of
which he had acquired knowledge was limited to the details of patients, and the
applicant’s pricing information (excluding its margins). As regards the issue of
pricing, the first respondent alleged that such information was commonly known
in the marketplace. Moreover, such pricing was regulated either by way of a
tender process (where the supply was for public hospitals) or the medical
insurance industry (where the supply was for private hospitals), processes with
which he had no involvement, and which negated any possible commercial
advantage which could be obtained by the second respondent from his being
aware thereof.
[36] Although the applicant disputed the correctness of the first respondent’s
assertions in reply, it again failed to provide any particularity concerning the
information in question, or to substantiate its position with any objective
evidence evincing its existence, having only expressed the view that the first
respondent’s undertaking given not to disclose any confidential information to
the second respondent ipso facto established the existence thereof. Such
undertaking was embodied in the first respondent’s answering affidavit, in
which the first respondent set forth the basis upon which he and the second
respondent believed the matter could be resolved,
‘I will not disclose to any third party, including and in particular, Stryker, any of
Zimmer’s confidential information that I had access to or knowledge of during and as a
result of my employment with Zimmer.’
[37] Whether the aforementioned statement could be construed as an admission, as
alleged by the applicant, or otherwise, as alleged by the first respondent, is
immaterial. W hilst the question of the existence of information would be a
factual issue in respect of which an admission would be dispositive, the same is
factual issue in respect of which an admission would be dispositive, the same is
not true in regard to the classification thereof . Whether information may be
classified as confidential is an issue in respect of which this court is required to
make a determination on the basis of the established facts and the subjective
opinions of the parties are irrelevant to that determination.
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[38] In view of that which was required to have been established in accordance with
Townsend, this court is unable to conclude that the first respondent is in
possession of any information which may be considered to be confidential to
the applicant.
[39] As stated, the enforcement of a restraint which has been breached rests upon
reasonableness. Reasonableness requires that some purpose be served by
limiting a former employee’s ability to utilise his or her skills and expertise freely
in the market place. For the reasons explained, this court is unable to find that
the enforcement of the restraint would be reasonable, and the application will
accordingly be dismissed.
Costs
[40] The parties were in agreement that costs ought to follow the result and, in the
circumstances, the applicant will be ordered to pay the respondents’ costs.
Order
1. The application is dismissed.
2. The applicant is ordered to pay the respondents’ costs.
________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
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Applicant:
Mr S Swiggers, instructed by Cox Yeats Attorneys
Respondents:
Mr L Frahm-Arp, of Fasken (Incorporated in South Africa as Bell Dewar Inc)